T.B. v. C.M.W. now C.M.P v. M.L.B. and J.R.B.

J-A18044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.M.W. NOW C.M.P. :
:
: No. 364 WDA 2020
v. :
:
:
M.L.B. AND J.R.B. :
:
Appellants :
Appeal from the Order Entered February 5, 2020
In the Court of Common Pleas of Cambria County Civil Division at No(s):
2014-177
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 16, 2020
M.L.B. and J.R.B. (Paternal Grandparents) appeal from the order
granting shared legal custody of the minor child, J.M.B. (Child), to her parents,
T.B. (Father) and C.M.P. (Mother), primary physical custody to Father, shared
partial physical custody to Paternal Grandparents and Mother, and granting
Father’s petition for relocation.1 We affirm.
The trial court thoroughly and accurately discussed the factual and
procedural history of the case in its opinions, entered January 15, 2020, and
April 6, 2020, and we adopt both histories herein. Trial Ct. Op., 1/15/20, 1-
____________________________________________
1 Mother has not separately appealed the custody order, nor has she filed a
brief in the instant appeal.
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39; Trial Ct. Op., 4/6/20, at 1-15. Pertinent to this appeal, we note the
following. Mother and Father, who never married, were in a relationship from
2010 until either late 2012 or early 2013. Mother became pregnant in early
2011 and gave birth to Child in November 2011, when Father was seventeen
years old and Mother was twenty-one years old. Prior to Child’s birth, in
August 2011, Father had enlisted in the United States Army Reserve with
Mother’s support. At that time, Mother lived in her own apartment and worked
at a local bar. Father lived part-time with Mother and part-time with Paternal
Grandparents, and Father worked five days a week at a drug store while
attending college online.
At first, Father watched Child on the weekends while Mother worked.
However, after Mother found Father asleep while Child was in her swing with
a soaked diaper, Mother began to utilize Paternal Grandparents for childcare.
While Paternal Grandparents at first provided child care in their home, the
arrangement gradually transitioned to Child living full-time with Paternal
Grandparents due to Mother’s and Father’s schedules.
Father attended Army Reserve basic training from July 2012 through
October 2012, and, during this time, Child mostly lived with Paternal
Grandparents. After Father returned from reserve basic training, his
relationship with Mother deteriorated and, at some time between December
2012 and January 2013, Father and Mother ended their relationship. Father
and Child moved in with Paternal Grandparents, who continued to care for
Child while Father worked. Mother worked late hours at a bar and saw Child
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twice a week when she was not working. In 2014, Mother began dating C.P.
(Stepfather) and spending less time with Child.
Father, meanwhile, began planning to enlist in the active duty Army,
and on January 12, 2014, Father and Mother agreed to a custody consent
order in anticipation of Father’s enlistment. Custody Consent Order, 1/21/14,
at 1. The consent order granted Father and Mother shared legal custody and
Mother primary physical custody, with Father having visitation as mutually
agreed.2 Id.
In May 2014, Father, who was at the time twenty years old, enlisted in
the active duty Army, with his initial contract ending in October 2019. Paternal
Grandparents encouraged Father’s enlistment, and Father believed that
Paternal Grandparents would return Child to him when he was stable and
settled.
Father attended active duty basic training in Georgia in October 2014,
and returned to Pennsylvania for Christmas in 2014. Father then attended
and graduated Basic Airborne School in Georgia in January 2015. Father was
then stationed in North Carolina.3 Since joining the active duty military,
____________________________________________
2 The consent order, in a “background” section, acknowledged that Child has
“always been in the care of” Paternal Grandparents during Father’s and
Mother’s absences. Custody Consent Order, 1/21/14, at 2. On January 27,
2014, Mother and Father filed an Amended Custody Consent Order that,
among other things, eliminated the “background” section. Amended Custody
Consent Order, 1/27/14, at 2.
3 Both Father and Paternal Grandmother testified that the Army did not permit
single parents to have custody of children. N.T., 10/31/19, at 9.
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Father has paid $565 per month in private child support to Paternal
Grandparents.
In April 2015, Mother and Stepfather had a daughter of their own. In
May 2015, Father married J.R. (Stepmother). In November 2016, Mother and
Stepfather moved to Indiana, and they married in March 2018.
On March 16, 2017, Father initially filed a petition for modification of the
custody, and, in response, Paternal Grandparents filed a petition for leave to
intervene. On March 29, 2017, Father filed an affidavit of service of a notice
of relocation.4 On April 6, 2017, Paternal Grandparents objected to Father’s
proposed relocation and Father’s request to modify the custody order.
However, by letter dated April 3, 2017, Father withdrew his petition for
modification, and on May 8, 2017, Paternal Grandparents filed a praecipe to
withdraw their petition for leave to intervene. From June 2017 to March 2018,
Father deployed to Afghanistan.
On May 2, 2018, Father filed the petition for modification of the custody
order that gave rise to this appeal. Paternal Grandparents filed a petition for
leave to intervene. By letter dated June 19, 2018, Father requested a hearing
before the trial court. On July 17, 2018, the parties consented to Paternal
Grandparents’ intervention in the action, and on August 8, 2018, Paternal
Grandparents filed an answer and counterclaim. A pretrial conference was
held on August 9, 2018.
____________________________________________
4 The relocation was to North Carolina, where Father was stationed.
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On November 1, 2018, Paternal Grandparents filed a motion for
appointment of a guardian ad litem (GAL) for Child pursuant to Pa.R.C.P.
1915.11-2. On December 13, 2018, following oral argument, the trial court
denied the motion.
The trial court convened hearings on the various petitions on December
14, 2018, March 4, 2019, and March 5, 2019. On December 14, 2018, Father
testified on his own behalf, and presented the testimony of Army Sergeant
K.J., II, Father’s senior non-commissioned officer (NCO); S.L., a police officer
and a friend of Father’s and Stepmother’s; and Army Specialist D.M. At the
conclusion of the December 14, 2018 hearing, the trial court asserted that
Child should attend counseling, but indicated that it did not need a counselor
to testify.
At the hearing on March 4, 2019, the parties entered into an agreement
that Child’s counselor would not testify. Thereafter, Father presented the
testimony of Stepmother and T.R., Stepmother’s mother. That same day,
Paternal Grandmother began her testimony. On March 5, 2019, Paternal
Grandmother concluded her testimony, and Mother testified on her own
behalf.
On March 6, 2019, the trial court issued an interim opinion and order,
without prejudice, that addressed “Paternal Grandmother’s apparent efforts
to manipulate Child and alienate her from Father,” directed all parties to
refrain from disparaging the others in front of Child, and directed Child’s
counselor to seek input from Mother and Father before continuing Child’s
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counseling. See Trial Ct. Op., 1/15/20, at 5. Additionally, the trial court
ordered that the counselor would not testify on behalf of any party or Child.
Paternal Grandparents filed a motion for reconsideration of the interim order
requesting that the trial court permit Child’s counselor to testify or appoint
another counselor to testify. Mot. for Modification & Recons. of the Interim
Order, 3/14/19, at ¶¶ 12-13. On March 25, 2019, the trial court denied
Paternal Grandparent’s motion for reconsideration.
Father re-enlisted in the Army in March 2019.5 The trial court conducted
an additional hearing on April 18, 2019. At that hearing, Paternal
Grandparents presented the testimony of Paternal Grandfather; G.L., Child’s
Sunday school teacher; A.R., Paternal Grandparents’ neighbor; N.L.P.,
Paternal Grandparents’ next-door neighbor; and H.H., a family friend of
Paternal Grandparents.
By interim order on May 17, 2019, the trial court provided the parties
with a summer custody schedule where Paternal Grandparents would exercise
custody until June 15, 2019; Mother would exercise custody from June 15,
2019 to July 13, 2019; and Father would exercise custody from July 13, 2019,
to August 19, 2019. Order, 5/17/19, at 1.
____________________________________________
5 Father currently resides in Cameron, North Carolina, with Stepmother and
their two biological sons, L.B. (born August 2017) and C.B. (born September
2019). N.T., 10/31/19, at 18, 89. He is a staff sergeant, serving as a combat
engineer and squad leader with an Airborne Division. N.T., 12/14/18, at 4,
67.
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The trial court held an additional hearing on July 15, 2019, at which time
Paternal Grandparents presented the testimony of P.H., Paternal
Grandmother’s mother; C.B., Paternal Grandparents’ daughter and Father’s
sister; and Paternal Grandmother’s testimony on recall. Following the
hearing, the trial court issued an interim order transferring primary physical
custody of Child to Father, without prejudice. Order, 7/16/19, at 1. The trial
court directed Father to enroll Child in school in North Carolina. Id.
The trial court held the final evidentiary hearing on October 31, 2019,
which included the continued cross-examination of Paternal Grandmother, as
well as additional testimony from Father and Paternal Grandfather.
On November 15, 2019, the trial court extended the deadline to render
its decision as required by Pa.R.C.P. 1915.4(d), due to the fact that the court
reporter had not completed two of the six required transcripts.
On January 15, 2020, the trial court issued its custody order, awarding
Father primary physical custody, and awarding Mother and Paternal
Grandparents partial physical custody as mutually agreed upon. Order,
1/15/20, at 1. The court afforded the parties thirty days to negotiate partial
custody schedules, including holidays, vacations, and other logistical issues,
for Mother and Paternal Grandparents. Id. However, when the parties could
not reach an agreement, the trial court issued its February 4, 2020 order,
providing said schedule. Order, 2/4/20, at 1.
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Paternal Grandparents timely filed a notice of appeal and statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The trial court filed a responsive Rule 1925(a) opinion.
On appeal, Paternal Grandparents raise the following issues for our
review:
1. Whether the trial court erred in not appointing a [GAL] for
[Child]?
2. Whether the trial court erred in precluding [Paternal
Grandparents] from presenting relevant evidence from [Child’s]
counselor?
3. Whether the trial court erred in not appropriately considering
and/or giving the appropriate weight to the testimony of [Child]?
4. Whether the trial court committed an abuse [of] discretion in
making the determination that the Paternal Grandparents
prevented [Father] from developing and maintaining a
relationship with [Child]?
Paternal Grandparents’ Brief at 4 (some formatting altered).
Appointment of GAL
Paternal Grandparents first argue that the trial court erred in denying
their motion to appoint a GAL for Child. Paternal Grandparents’ Brief at 13.
Paternal Grandparents contend that a GAL was required to ensure that the
needs and welfare of Child would be actively advanced by an advocate who
owed loyalty only to her. Id. at 14. Further, Paternal Grandparents note that
the trial court relied on upon case law that predated the adoption of Pa.R.C.P.
1915.11-2, and that the current rule does not state an extraordinary
circumstances standard for appointing a GAL. Id. at 16 (citing Moorman v.
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Tingle, 467 A.2d 359 (Pa. Super. 1983) and C.W. v. K.A.W., 774 A.2d 745(Pa. Super. 2001)). Paternal Grandparents assert, in the alternative, that
Moorman and C.W. supported their request for the appointment of a GAL
due to extraordinary circumstances. Id. at 16-17. Lastly, Paternal
Grandparents contend that the trial court erred when it considered their
request to be a means of delaying the custody proceeding. Id. at 17.
Father counters that the trial court properly denied Paternal
Grandparent’s request for the appointment of a GAL. Father asserts, in part,
that the instant case is analogous to Moorman and distinguishable from C.W.
Father’s Brief at 18. Father adds that there was no evidence that the
appointment of a GAL “would have had any impact on [the t]rial [c]ourt’s
ultimate decision to award primary custody to Father.” Id. at 23. Father
notes that the trial court was able to determine Child’s preferences without a
GAL. Id. at 16 & n.2.
The appointment of a guardian lies within the sound discretion of the
trial court. Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994).
“Discretion must be exercised on the foundation of reason. An abuse of
discretion exists when the trial court has rendered a judgment that is
manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,
or was motivated by partiality, prejudice, bias, or ill will.” In re Duran, 769
A.2d 497, 506 (Pa. Super. 2001) (internal citations and quotations omitted).
The Pennsylvania Rules of Civil Procedure, as well as the Domestic
Relations Code, permit the court to appoint a GAL to represent the best
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interests of a child in a custody action.6 Pa.R.C.P. 1915.11-2; see also 23
Pa.C.S. § 5334. “A [GAL] is appointed by the court to represent a minor child
in particular litigation. The function of the guardian is to represent and protect
unrepresented minors and their interests.” C.W., 774 A.2d at 748-49(citations omitted).
This Court has further observed that “appointment of a GAL in a custody
matter is not mandatory.” M.B.S. v. W.E., ___ A.3d ___, 2020 PA Super
118, 2020 WL 2537058, at * 5 n.6 (Pa. Super. filed May 19, 2020). Moreover,
a [GAL] is not normally appointed in custody cases involving
natural parents. A [GAL] is a person appointed by the court to
____________________________________________
6 Pennsylvania Rule of Civil Procedure 1915.11-2 states, in relevant part:
(a) The court may, on its own motion or the motion of a party,
appoint a guardian ad litem to represent the best interests of the
child in a custody action. The guardian ad litem shall be a licensed
attorney or licensed mental health professional. The guardian ad
litem shall not act as the child's counsel or represent the child's
legal interests. Prior to appointing a guardian ad litem, the court
shall make a finding that the appointment is necessary to assist
the court in determining the best interests of the child.
* * *
(c) The guardian ad litem shall file of record and provide copies of
any reports prepared by the guardian ad litem to each party and
the court not later than 20 days prior to trial. The admissibility of
the report shall be determined at the hearing. Prior to disclosure
to the parties of confidential information prohibited by 23 Pa.C.S.
§ 5336, the court shall make a determination of whether the
information may be disclosed. The guardian ad litem shall attend
all proceedings and be prepared to testify. The guardian ad litem
shall be subject to cross-examination if called to testify by either
party or the court.
Pa.R.C.P. 1915.11-2(a), (c).
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represent a minor child’s interest in particular litigation before the
court. The appointment of a [GAL] is generally reserved for those
actions where the trial court deems it necessary because the
child’s interest may be adversely [a]ffected, e.g., adoptions.
However, in custody cases involving natural parents, despite the
bitterness of each party towards each other, both parties are
focused on the best interests of the child. Moreover, in a custody
case, the trial court is obliged to ascertain the child’s best interest.
C.W., 774 A.2d at 748 n.3 (determining that, since both parties and the trial
court are focused on child’s best interests, the appointment of a GAL would
not be proper absent extraordinary circumstances, and that bitterness
between the parties ordinarily does not rise to the level of extraordinary
circumstances needed for an appointment of a GAL).
Instantly, at the December 13, 2018 hearing on the motion to appoint
a GAL, Paternal Grandparents’ counsel argued that a GAL was necessary
because the case was complicated, Child had strong opinions, and Child had
strong attachment to Paternal Grandparents. N.T., 12/13/18, at 2-3.
Specifically, Paternal Grandparents’ counsel asserted that a GAL should “come
in and talk to everybody and then issue a report to the [trial court] outlining
what they believe is in [Child’s] best interest.” Id.The trial court noted that trial was scheduled to start the next day and
expressed its concern that trial would be delayed. Id. at 3-4. The following
exchange then took place:
THE COURT: [Y]ou say, well, this is a complex case. You know,
the [court] deals with third-party cases all the time[,] that it’s no
longer unusual or out of the ordinary. So I don’t know that it
necessarily makes it a complex case on its face. So your reasons
are this is a precocious child who has a strong opinion. How is
appointing a [GAL] and delaying this in all likelihood going to help
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me from what I would normally get in an in-camera interview with
[Child]?
[Paternal Grandparents’ Counsel]: I think the [GAL] would have
more of a benefit of seeing her interact, seeing her -- generally
speaking, you know, the [GAL] will have the benefit of going to
the home if she chooses to or having the child come to her office
but spending more time with her than just an in-camera interview.
I mean, as [the court] is aware[,] we’re normally tasked with
having the availability to spend that time that sometimes we won’t
get in camera . . .
Id. at 5.
At the conclusion of the hearing, the trial court stated:
At this time, based on the arguments that have been presented,
I don’t find that there is sufficient reason to either delay this
matter or add a [GAL]. . . .
. . . I don’t think there has been any demonstration through
argument that any of the parties have anything other than the
[Child’s] best interest at heart and it will not be the first time that
I have heard from a precocious or opinionated young person. So
I am going to deny [Paternal Grandparents’ motion for the
appointment of a GAL] at this time.
Id. at 18.
The trial court subsequently explained its decision to deny Paternal
Grandparents’ motion to appoint a GAL as follows:
This case is factually analogous to [Moorman] because it involves
a grandparent custodian. In that case, the Superior Court failed
or refused to adopt a blanket rule that third-party custody cases
require the appointment of a [GAL]. To that end, in its December
13, 2018, colloquy, the [trial court] noted the prevalence of
grandparent custody cases and suggested that this fact alone does
not make a case “complex.”
The present facts are distinguishable from [C.W.] because it is not
a contest between natural parents; but the holding nonetheless
applies. If all parties appear to be seeking the best interests of
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the child -- as was the case before the [trial court] -- there is no
requirement to appoint a [GAL]. As in [C.W.], the bitterness
between the parties does not rise to the level of extraordinary
circumstances needed for the appointment of a [GAL]. Finally,
the [trial court] engaged in a thorough and lengthy interview with
Child, having no difficulty eliciting Child’s strongly-held
preferences even without a [GAL]. For these reasons, the [trial
court] did not err in refusing to grant Paternal Grandparents’
request for a [GAL].
See Trial Ct. Op., 4/6/20, at 6-7 (record citations and footnote omitted).
Following our review, we find no error abuse of discretion in the trial
court’s decision to deny Paternal Grandparents’ motion to appoint a GAL.
Paternal Grandparents have not provided a reason why the case is so
complicated that the trial court required assistance in determining Child’s best
interests. As the trial court noted, it had no difficulty eliciting Child’s
preference without the assistance of a GAL. See Trial Ct. Op., 4/6/20, at 6-
7. Moreover, nothing in the record shows that the trial court was incapable of
determining Child’s best interests when making its decision on custody.
Therefore, Paternal Grandparents’ first issue fails. See Estate of Haertsch,
649 A.2d at 720.
Precluded Evidence from Child’ Counselor
In their next issue, Paternal Grandparents argue that the trial court
erred in precluding them from presenting relevant evidence from Child’s
counselor. Paternal Grandparents’ Brief at 18. Paternal Grandparents assert
that the evidence from the counselor was relevant to the trial court’s inquiry
in the case and, specifically, the trial court’s conclusion that Paternal
Grandparents were attempting to estrange Child from Father. Id. at 19-20.
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According to Paternal Grandparents, the trial court should have utilized all
available evidence, particularly because the trial court did not appoint a GAL.
Id. at 20. Paternal Grandparents conclude that the trial court “did not afford
itself of all of the facts and circumstances which may have been available to
it . . . .” Id.
Father responds that the trial court’s ruling was proper under the
circumstances of the case. Father emphasizes that all of the parties agreed
that Child would see a counselor, but they would not call Child’s counselor to
testify at trial. Father’s Brief at 23.
“The admission or exclusion of evidence, including the admission of
testimony from an expert witness, is within the sound discretion of the trial
court.” In re K.C.F., 928 A.2d 1046, 1050 (Pa. Super. 2007) (citation
omitted).
Here, the trial court observed:
On December 14, 2018, the parties agreed that Child would attend
counseling with Janet Shadid of Westmont Family Counseling
Ministries, but that Ms. Shadid would not testify in court. The
parties believed this would reduce the likelihood of “posturing”
and increase the chances that counseling would be effective. Ms.
Shadid obtained background information from Paternal
Grandparents, not from Father. Father objected that the
counselor had received a one-sided characterization of the parties’
circumstances. At the hearing on March 4, 2019, Paternal
Grandparents attempted to introduce a report from Ms. Shadid in
violation of their agreement. The [trial court] denied their
request, stating, “insamuch as we had all agreed that Miss Shadid
would not testify so that we could ensure that nobody was
posturing for the sake of the counseling, I am going to deny the
request to have her testify.”
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In its Interim Order dated March 6, 2019, the [trial court]
confirmed the parties’ agreement, ordering that “[t]he counselor
shall not testify on behalf of any party or the child.” The [c]ourt
also directed that, if Child “continues in counseling with Janet
Shadid of Westmont Family Counseling Ministries, the counselor
shall first seek input from Mother and Father.”
The [trial court] abided by the parties’ agreement that the
counselor would not testify at trial. Paternal Grandparents cannot
disregard the agreement simply because they will ostensibly
benefit from something the counselor reports.
See Trial Ct. Op., 4/6/20, at 10 (record citations omitted).
Paternal Grandparents do not address the agreement in their brief but,
instead, argue that the court should have considered the counselor’s report
regardless. As the admission of evidence is within the sound discretion of the
trial court, and the trial court abided by the agreement of the parties, we
cannot find an abuse of discretion in the exclusion of Ms. Shadid’s testimony.
In re K.C.F., 928 A.2d at 1050.
Alienation
Paternal Grandparents next challenge the trial court’s determination
that Paternal Grandparents alienated Child from Father. Paternal
Grandparents’ Brief at 21-26. Specifically, Paternal Grandparents argue that
the court erred in finding that they had attempted to estrange Child from
Father, because they offered evidence that Father historically had not made
significant efforts to spend time with Child and often failed to keep his
promises to call Child. Paternal Grandparents’ Brief at 26. Paternal
Grandparents note that the trial court made its finding after hearing Father’s
testimony on the first day of trial and contend that the evidence did not
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support the trial court’s determination. Id. at 24. Paternal Grandparents
insist that Father had misled the trial court as to his involvement and efforts
to maintain a relationship with Child. Id. at 26.
Father contends that trial court “engaged in a through discussion of its
determination as to the credibility of the parties.” Father’s Brief at 32.
According to Father, Paternal Grandparents’ claim that the evidence did not
support the trial court’s conclusion lacks merit. Id. at 36-37.
Initially, we note that the scope and standard of review in custody
matters is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
With any child custody case, the paramount concern is the best
interests of the child. This standard requires a case-by-case
assessment of all the factors that may legitimately affect the
physical, intellectual, moral and spiritual well-being of the child.
M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (citation omitted).
“[W]hen making a custody award, ‘[t]he court shall delineate the reasons for
its decision on the record in open court or in a written opinion or order.’” Id.- 16 -
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at 335. The trial court must delineate its reasons at or near the time of its
decision. A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).
With regard to custody disputes between biological parents and third
parties, this Court has observed that:
The parent has a prima facie right to custody, “which will be
forfeited only if convincing reasons appear that the child’s best
interest will be served by an award to the third party.” Section
5327 of the Custody Act pertains to cases “concerning primary
physical custody” and provides that, “[i]n any action regarding the
custody of the child between a parent of the child and a nonparent,
there shall be a presumption that custody shall be awarded to the
parent. The presumption in favor of the parent may be rebutted
by clear and convincing evidence.” This Court has defined clear
and convincing evidence “as presenting evidence that is so clear,
direct, weighty, and convincing so as to enable the trier of fact to
come to a clear conviction, without hesitation, of the truth of the
precise facts in issue.”
Accordingly, “even before the proceedings start, the evidentiary
scale is tipped, and tipped hard, to the biological parents’ side.”
When making a decision to award primary physical custody to a
nonparent, the trial court must “hear all evidence relevant to the
child’s best interest, and then, decide whether the evidence on
behalf of the third party is weighty enough to bring the scale up
to even, and down on the third party’s side.”
R.L. v. M.A., 209 A.3d 391, 396 (Pa. Super. 2019) (citations omitted).
The Child Custody Act lists the factors to be considered by the court:
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
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risk of harm to the child or an abused party and which party
can better provide adequate physical safeguards and
supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating
to consideration of child abuse and involvement with protective
services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
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(14) The history of drug or alcohol abuse of a party or member
of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Instantly, the trial court thoroughly and thoughtfully discussed the
sixteen custody factors in its January 15, 2020 opinion. Although Paternal
Grandparents do not enumerate which factors they challenge, their arguments
go to the finding and weight the trial court afforded to the first, third, seventh,
eighth, ninth, and tenth custody factors.7 We add that the trial court also
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7 The trial court made findings as to relocation factors as well, which Paternal
Grandparents have not expressly challenged on appeal. However, we note
that when a request for relocation of the subject children along with a parent
is involved, the trial court must consider all of the following ten relocation
factors set forth within Section 5337(h) of the Act:
(h) Relocation factors.—In determining whether to grant a
proposed relocation, the court shall consider the following factors,
giving weighted consideration to those factors which affect the
safety of the child:
(1) The nature, quality, extent of involvement and duration of
the child's relationship with the party proposing to relocate and
with the nonrelocating party, siblings and other significant
persons in the child’s life.
(2) The age, developmental stage, needs of the child and the
likely impact the relocation will have on the child’s physical,
educational and emotional development, taking into
consideration any special needs of the child.
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considered the presumption of custody in favor of Father, and determined that
Paternal Grandparents failed to rebut that presumption by clear and
____________________________________________
(3) The feasibility of preserving the relationship between the
nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial
circumstances of the parties.
(4) The child’s preference, taking into consideration the age
and maturity of the child.
(5) Whether there is an established pattern of conduct of either
party to promote or thwart the relationship of the child and the
other party.
(6) Whether the relocation will enhance the general quality of
life for the party seeking the relocation, including, but not
limited to, financial or emotional benefit or educational
opportunity.
(7) Whether the relocation will enhance the general quality of
life for the child, including, but not limited to, financial or
emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or
opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party's household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S. § 5337(h); see also C.M.K. v. K.E.M., 45 A.3d 417, 422 (Pa.
Super. 2012). We add that trial court did address all ten relocation factors.
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convincing evidence. See Trial Ct. Op., 1/15/20, at 34; see also R.L. v.
M.A., 209 A.3d at 396
Instantly, in its discussion of the first and eighth factors, the trial court
discussed the ways in which Paternal Grandparents had prevented Father from
being part of Child’s life and parenting Child. See Trial Ct. Op., 1/15/20, at
18-25, 31. For example, trial court found, and there was undisputed evidence,
Paternal Grandparents had no signs of Father such as pictures in their home.
Id. at 18; see also N.T., 3/4/19, at 46-50; 3/5/219, at 84-86. The trial court
credited Father’s testimony that Paternal Grandparents limited the place and
times in which Father exercised custody of Child. 8 Trial Ct. Op., 1/15/20, at
18; see also N.T., 12/14/18, at 30-45. The trial court further credited
Father’s testimony that Paternal Grandparents did not facilitate Father’s
telephone contact with Child. Trial Ct. Op., 1/15/20, at 21-22; see also N.T.,
12/14/18, at 23, 27-29, 32, 53. Specifically, Father testified that Paternal
Grandparents would tell Father that Child was busy or did not want to talk,
and diminished the importance of Father’s phone calls against anything
previously scheduled. Father also testified that Paternal Grandparents blocked
____________________________________________
8 Specifically, the trial court credited Father’s testimony that Paternal
Grandparents refused to permit Father to have custody of Child outside of
Paternal Grandparents’ home, which prevented Father from having dinner at
a friend’s house or going to the zoo or a park with Child. N.T., 12/14/18, at
30, 34, 39. The trial court also credited Father’s testimony that Paternal
Grandparents refused to allow him to have custody for more than a few hours
at a time, and until November 2016, did not let Child visit Father in North
Carolina overnight. Id. at 35, 37, 42, 45.
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Father’s phone number in January of 2015, and thwarted Father’s phone
contact with Child during his deployment to Afghanistan. Trial Ct. Op.,
1/15/20, at 22; see also N.T., 12/14/18, at 28-29, 50-51. Both Father and
Paternal Grandparents placed Father’s calls to Child on speakerphone, and
Stepmother stated that she heard Paternal Grandparents whispering to Child
to “hurry up” during Father’s calls with Child. Trial Ct. Op., 1/15/20, at 22;
see also N.T., 3/4/19, at 15-16. Paternal Grandparents also planned events
during Father’s visits with Child on his four-day passes and required Father to
work around their schedules for Child. Trial Ct. Op., 1/15/20, at 20; see also
N.T., 12/14/18, at 34-35, 46-48.
Paternal Grandparents also gave Child a GPS-tracking watch that they
told her not to remove during Father’s custody periods. Trial Ct. Op., 1/15/20,
at 20; see also N.T., 12/14/18, at 36-37. Moreover, the trial court credited
Father’s testimony that Paternal Grandparents told Child that, if Father took
her to North Carolina, Child would never see Paternal Grandparents again. 9
Trial Ct. Op., 1/15/20, at 20; see also N.T., 12/14/18, at 37. Child told Father
____________________________________________
9 The trial court made further findings that Paternal Grandparents (1) had
Child tell Father that, if he really loved her, he “would just sign the paperwork”
to give them custody, (2) refused to encourage Child to visit Father, (3) told
Child that Father was asleep when she was born, (4) refused to stay in Father’s
home and forced Father to drive three hours every day to see Child during a
visit Paternal Grandparents and Child made to North Carolina, (5) refused to
allow Father to take Child to Disney World before his deployment, but then
taking Child to Disney World themselves during his deployment, and (6) made
Child feel guilty when she was with Father. The record supported each of
these findings.
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during a visit that she had to call Paternal Grandmother because Paternal
Grandmother would die or be up all night crying if Child was not with her.
N.T., 12/14/18, at 73.
The trial court also found incredible Paternal Grandparents’ claims that
they wished to maintain custody of Child until she was ten or eleven years old
before transferring custody to Father. In so doing, the court considered that
Father would not be able to develop a relationship with Child due to the limited
opportunities afforded by Paternal Grandparents and the lack of insight
Paternal Grandparents showed regarding the way their actions were
negatively affecting Child. Trial Ct. Op., 1/15/20 at 23-24.
With regard to the text messages, the trial court observed:
During the trial, the parties presented snapshots of their electronic
communications as exhibits. Typically, the parties would present
copies of communications that depicted another party in a
negative light. Early in the trial, Paternal Grandparents presented
significant evidence regarding their communications with Father.
Eventually, the [trial court] requested similar communications
between Paternal Grandparents and Mother. The exhibits
submitted in response to the [c]ourt’s directive were illuminating.
Instead of snapshots, the [trial court] now had a more complete
record of the parties’ daily interactions with one another. The
totality of the communication record illustrated the stark
difference in the level of cooperation between Paternal
Grandparents (primarily Grandmother) and Child’s parents. To
Mother, Paternal Grandmother was kind and cooperative. To
Father, Paternal Grandmother was curt and obstructionist.
Paternal Grandmother submitted 111 pages of text messages
between Paternal Grandmother and Father for the period from
August 19, 2018, to June 11, 2019. Intervenors’ Exhibits 16 and
16(A) (Oct. 31, 2019). The communications are completely
transactional. Paternal Grandmother offers minimal information
to Father, and expresses no warmth or affection for him. On the
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other hand, Paternal Grandmother’s text exchanges with Mother
are easygoing, loving, and conversational. See Appendix A.
Id. at 24-25.
Based on these findings, the trial court concluded:
Paternal Grandparents had ample opportunities to foster a loving
relationship between Child and her active duty military Father . .
. , but they failed or refused to do so. Child’s testimony revealed
the devastating effect of this conduct on her. See, e.g., N.T.[,
3/5/19, at 30-32] (Child loves her parents “a little”). Either Child
professed limited affection for her parents to satisfy her doting
grandparents, or she really has no love for Mother and Father.
The ease with which Child transitioned to Father’s custody
suggests it was the former. This provides hope that Child can
overcome Grandparents’ pervasive efforts to prejudice her against
Father.
Id. at 25.
Following our review, we find that Paternal Grandparents’ arguments
that the trial court erred in finding that they alienated Father are akin to a
challenge to the trial court’s weight and credibility determinations. The trial
court was free to assess the weight of the evidence and make credibility
determinations that were supported by the record. See M.J.M., 63 A.3d at
334. Here, the trial court considered all of the evidence presented including
six days of testimony and voluminous exhibits introduced both by Paternal
Grandparents and by Father. In examining the evidence and the testimony of
all parties, the trial court found Father’s testimony regarding Paternal
Grandparents’ alienation credible, and Paternal Grandparents’ explanations
and testimony for their conduct incredible. The record supports the trial
court’s findings and, therefore, those findings were soundly within the trial
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court’s purview. See id. Moreover, having reviewed the record, we find no
basis to conclude that the trial court’s conclusion that Paternal Grandparents
played a role in Child’s estrangement from Father was unreasonable. See id.Accordingly, we affirm the trial court’s finding that Paternal Grandparents’
alienation of Father was determinative of the first and eighth custody factors
and relevant to the trial court’s consideration of the third, ninth, and tenth
custody factors.
Child’s Preferences
Paternal Grandparents also claim that the trial court improperly
discounted Child’s preferences based on its findings that they alienated Father
and “brainwashed” Child. Paternal Grandparents’ Brief at 23. Paternal
Grandparents add that if the trial court had appointed a GAL or permitted to
Child’s counselor to testify, it would have had a more complete picture to
decide all factors legitimately having an effect on Child’s physical, intellectual,
moral, and spiritual well-being. Id.Father responds that the trial court properly weighed Child’s preference
based on the influence Paternal Grandparents had on Child. Father’s Brief at
31. Father notes that the record supported the trial court’s finding that
Paternal Grandparents influenced over Child. Id. at 27.
With respect to Child’s preferences under Section 5328(a)(7), it was
undisputed that Child stated she wanted to remain with Paternal Grandparents
and did not want to stay with Father. However, the trial court stated that it
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considered Child’s preference but will afford it little weight. It is
very evident that Child has been heavily influenced by Paternal
Grandparents’ efforts to estrange her from Father. In short,
Paternal Grandparents brainwashed Child.[fn12] Unfortunately,
Child has adopted Paternal Grandparents’ jaded and unfair
characterization of Father’s motives. To compound the problem,
Paternal Grandparents refuse to acknowledge that their actions
are damaging to Child. It is hard to imagine that Child will not
suffer emotionally from Paternal Grandparents’ systematic and
pervasive alienation of her parents. For these reasons, this factor
favors Father.
The [trial court] uses the term “brainwashed” in
[fn12]
the layman’s sense, not as a psychological or
psychiatric term.
Trial Ct. Op., 1/15/20, at 30-31 (footnote in original).
Our review of the record reveals that the trial court interviewed Child in
chambers on March 5, 2019, when Child was seven and a half years old. Id.
at 30. As the trial court observed that
[Child] presented with a level of maturity and intelligence slightly
above her chronological age. Throughout her interview, Child
expressed many of the same sentiments as Paternal
Grandmother. For example, Child was unable to admit anything
positive about Father; she insisted that Father could “visit” her,
but not have overnights; and she expressed disdain for his
frequent calls:
Q[:] Why don’t you want to talk to [Father]?
A[:] Because he pretty much calls often and I don’t like that.
Like once a month or once a year would be good.
Q[:] Oh, really. Why do you think that?
A[:] Um, because he calls every night and I don’t like it, or
he says he’ll call and he doesn’t. So that makes him a liar
but a hypocrite.
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N.T.[, 3/5/20, at] 23-24. This was just one of many heartbreaking
statements made by Child. Not surprisingly, Child expressed a
strong preference to remain in Paternal Grandparents’ custody.
Trial Ct. Op., 1/15/20, at 30-31 (footnote in original).
Ultimately, Paternal Grandparents take issue with the trial court’s weight
and credibility determinations. However, the trial court relied upon the
testimony of Father, which it found credible, and the in-camera testimony of
Child. Trial Ct. Op., 1/15/20, at 30. Moreover, as discussed above, the record
contains numerous examples of Paternal Grandparents’ efforts to alienate
Child from Father that supported the trial court’s determination of the weight
of Child’s preferences. As the court’s credibility and weight determinations
are supported by the record, we decline to disturb them on appeal. See
M.J.M., 63 A.3d at 334.
Lastly, to the extent Paternal Grandparents argue that a GAL or
counselor could have better represented and clarified Child’s best interest, we
disagree. In light of the evidence that Paternal Grandparents influenced
Child’s relationship with Father, which the trial court found credible, we discern
no basis to conclude that the trial court erred in weighing the evidence related
to Child’s preferences without a GAL or additional evidence for a counselor.
Conclusion
For the foregoing reasons, we conclude that the trial court did not err or
abuse its discretion when denying Paternal Grandparents’ motion to appoint a
GAL, denying Paternal Grandparents’ motion to permit a counselor to testify,
and in granting Father’s petitions for modification of custody and relocation.
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There is no doubt that all parties in this appeal love Child and sought what
they sincerely believed was in Child’s best interest. Nevertheless, having
reviewed Paternal Grandparents’ arguments in light of the record and the
relevant law, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2020
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